September 1, 2012
By Laura E. Beverage and Christopher G. Peterson
In last month’s Rock Law column, a Jackson Kelly associate discussed how the Federal Mine Safety and Health Review Commission’s decision in Peabody Midwest Mining, LLC, et al. signaled a departure from the long held notion that the Mine Safety and Health Administration (MSHA) lacked authority to obtain documents not required to be maintained under the Mine Act in the context of the Part 50 audit. However, this is not the final word in the discussion regarding the scope of MSHA’s access to documents. In Peabody Midwest Mining, LLC, et al., the Review Commission emphasized that any document request must be reasonable, and the information sought must be relevant and necessary to a legitimate agency purpose. Thus, once a document request is made, an operator could be subjected to enforcement actions and significant penalty potential when challenging the relevance and scope of any request before a Review Commission ALJ and the Review Commission.
However, even a legal challenge to MSHA’s document request authority may meet with limited success as the discussion of § 103(h) extends to areas not addressed in the Peabody Midwest Mining, LLC decision. For example, in Hopkins County Coal, LLC v. Secretary of Labor, 2012 WL 1564568 (ALJ Barbour April 2012), MSHA investigated a § 105(c) discrimination complaint which made no specific claims of protected activity. The MSHA special investigator asked for a number of documents from the operator, including documented hazards (whether or not included in the required record books), employee handbook editions for five years, all personnel files of disciplined or terminated employees for a period of five years, and all documents relied upon by the operator in its decision to terminate the individual.
Once a document request is made, an operator could be subjected to enforcement actions and significant penalty potential when challenging the relevance and scope of any request.
The operator’s legal counsel repeatedly sought clarification as to how the miner complaint stated a viable claim under the Mine Act and how the complaint was related to any of the requested documents. Ultimately, the operator provided those records required to be maintained under the Mine Act, but refused to provide the personnel files. MSHA issued a citation alleging violation of § 103(a) of the Mine Act for impeding the inspection, followed by a § 104(b) failure to abate order, citing authority under § 103(h) of the Mine Act which MSHA argued gave them access to the personnel records. The Secretary noted that she also had the option to seek an injunction under § 108 for failure to provide the documents, but that she opted for the failure to abate order.
The operator argued before the ALJ that the personnel files are protected by the Fourth Amendment right against unreasonable search and seizure and would not be released without specific releases from the employees whose files were requested. The operator also argued that the requests were overbroad and unduly burdensome in that they encompassed a five-year period. The Secretary claimed that the operator bears the burden of showing that her investigative authority was exceeded under §§ 103(a) and (h).
The ALJ noted that warrants were not required for administrative searches made pursuant to the Mine Act [Donovan v. Dewey, 452 U.S. 594, 604 (1981)]. Hence, he found that a warrant was not required for production of the documents, and the operator had no privacy rights in the personnel files. The ALJ found that MSHA’s purpose of promoting miner safety outweighed any potential privacy interest a miner or mine operator had in the personnel files. Moreover, the ALJ found that the operator had no standing to assert privacy rights of the employees who were not a party to the proceeding.
The ALJ found that in § 103(h) Congress clearly intended for the Secretary to have access to more than just those files required to be kept under the Mine Act by requiring the operator to “provide such information as the Secretary . . . may reasonably require from time to time to enable [her] to perform [her] functions under this Act.” One such function, the ALJ found, is the investigation of discrimination claims made by miners to determine whether there has been a violation of the Act. The ALJ decided that, where the Secretary’s function is the evaluation of a discrimination claim, information that is relevant to assessing the merits of that claim, including evidence of protected activity, adverse action, or discriminatory intent, may be “reasonably required.”
The ALJ concluded that the Secretary was entitled to the requested personnel files and that the operator interfered with MSHA’s investigation when it refused to provide the files. The ALJ noted that the operator had the ability to redact those portions of the records that were sensitive. This case is pending before the Review Commission on the operator’s petition for discretionary review.
It is noteworthy that an MSHA investigator may or may not accept redactions, and this concept of privacy is one frequently subject to protective orders negotiated or ruled upon in the discovery process in litigation, not in the field during an inspection. Moreover, MSHA cannot guarantee the ultimate non-disclosure of records obtained during an investigation if a Freedom of Information Act request is made of the government file by any person.
The ALJ found that a warrant was not required for the production of the documents, and the operator had no privacy rights in the personnel files.
However, the scope of MSHA’s authority to obtain documents and information not required to be maintained under the Mine Act may become a moot question as advocates for proposed new mine safety legislation have repeatedly requested subpoena authority to bolster MSHA’s inspection and investigation power. As Commissioner Duffy noted in his dissent in Peabody Midwest Mining, LLC, one of the problems MSHA has with its current “ad hoc” approach to document and information requests is that, without notice, the opportunity to comment, and a structured protocol applicable to all operators, the tactic of seeking non-required records by individualized letter requests violates due process rights. In any new mine safety legislation, Congress could very well take note of Commissioner Duffy’s dissent and mirror the Occupational Safety and Health Administration’s subpoena power and the safeguards inherent in its subpoena process, such as requiring the agency to consider relevance, scope, and authority, while also affording an operator the ability to move to quash in a readily provided forum — without being subjected to enforcement actions and penalties.
What does this mean for operators going forward? The uncertainty created by these recent decisions makes formulating a response to similarly broad document requests difficult, particularly since both decisions are on appeal. At a minimum, the following precautions might be considered:
• Each request for non-required records and information should be carefully considered on a case-by-case basis to determine whether compliance with the request is “reasonably required” to enable the inspector to perform the functions required under the Mine Act.
• An understanding of the nature of the inspection/investigation should be developed.
• Requests for non-required records sought by MSHA should be reduced to writing and be specific as to what is sought, why, and the time frame for which the request pertains.
• Alternatives to providing the information in document form might be considered, such as providing a witness to summarize information.
• When in doubt, seek assistance from legal counsel.
Laura E. Beverage is a member of Jackson Kelly PLLC and manages its Denver office. She can be reached at 303-390-0004 or firstname.lastname@example.org.
Christopher G. Peterson is an associate in the firm’s Denver office. He can be reached at 303-390-0009 or email@example.com.